Citation Nr: 0531585
Decision Date: 11/21/05 Archive Date: 11/30/05
DOCKET NO. 00-17 352 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for a lumbar spine
condition.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Simone C. Krembs, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1974 to June 1987.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 1999 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, that denied the veteran's application to reopen his
previously denied claim for service connection for a lumbar
spine condition. In June 2001, the Board remanded the claim
for additional development. By a de novo review in May 2005,
the RO denied service connection for a lumbar spine condition
on the merits.
The Board observes that service connection for a lumbar spine
condition was previously denied in a February 1988 RO
decision. Thus, although the RO has adjudicated the issue of
entitlement to service connection for a lumbar spine
condition on the merits, the Board must consider the question
of whether new and material evidence has been received
because it goes to the Board's jurisdiction to reach the
underlying claim and adjudicate the claim de novo. See
Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett
v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). If the Board
finds that no such evidence has been offered, that is where
the analysis must end, and what the RO may have determined in
that regard is irrelevant. See Barnett, supra.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
this appeal was requested. The veteran has been notified of
all of the legal and evidentiary requirements regarding this
claim, including his responsibility to report for scheduled
examinations.
2. The veteran failed to report for a scheduled VA
examination in March 2005 and has given no good cause for his
failure to report or exhibited a willingness to report for a
VA examination if another was scheduled.
CONCLUSION OF LAW
The application to reopen a claim for service connection for
a lumbar spine condition is denied as a matter of law.
38 C.F.R. § 3.655 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran filed his application to reopen his previously
denied claim of service connection for a lumbar spine
condition in September 1998. In July 1999, the RO denied the
veteran's application to reopen; the veteran appealed to the
Board. In June 2001, the Board remanded the claim for
further development. By letters dated in October 2001 and
August 2004, the RO advised the veteran that VA would make
reasonable efforts to help him get the evidence necessary to
substantiate his application to reopen his claim for service
connection, but that he must provide enough information so
that VA could request any relevant records. The veteran was
told that a VA examination may be scheduled and that he must
report or his claim may be denied. The veteran was requested
to provide authorization for the release of any private
medical records. The veteran was also asked to identify any
additional information or evidence that he wanted VA to try
and obtain.
In a March 2005 letter, the veteran was notified that a VA
examination would be scheduled and that it was his duty to
report or his claim may be denied.
VA regulations provide that when a claimant fails to report
for a scheduled medical examination without good cause an
application to reopen a claim shall be denied, without review
of the evidence of record. See 38 C.F.R. § 3.655 (2005). In
addition, when requested information is not furnished within
one year, claims are considered abandoned. See 38 C.F.R. §
3.158 (2005). The United States Court of Veterans Affairs
(Court) has held that the burden is upon VA to demonstrate
that notice was sent to the claimant's last address of record
and that the claimant lacked adequate reason or good cause
for failing to report for a scheduled examination. Hyson v.
Brown, 5 Vet. App. 262, 265 (1993). Although, in dicta, the
Court stated that in the normal course of events it was the
burden of the veteran to keep VA apprised of his whereabouts,
and that if he did not do so there was no burden on the VA to
turn up heaven and earth to find him before finding
abandonment of a previously adjudicated benefit, the Court
has also held that the "duty to assist is not always a one-
way street." Id.; Wood v. Derwinski, 1 Vet. App. 190, 193
(1991).
The record documents that the veteran was notified by letter
sent to his address of record discussing his responsibilities
concerning his claim on two occasions following his
application to reopen his claim for service connection, in
October 2001 and August 2004. The March 2005 letter
notifying the veteran as to the scheduling of the examination
also advised him of the consequences of failing to report for
an examination scheduled in conjunction with his claim. The
veteran has never responded with a willingness to report for
an examination. Therefore, the Board finds that additional
efforts to schedule an examination would be futile. In the
absence of clear evidence to the contrary, the law presumes
the regularity of the administrative process. Mindenhall v.
Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v.
Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for
VA purposes is a written notice sent to the claimant's last
address of record. See 38 C.F.R. § 3.1(q) (2005).
Given the presumption of regularity of the mailing of VA
examination scheduling notice and the fact that the veteran
has not contacted the RO to attempt to reschedule an
examination, the Board is satisfied that the veteran failed
to report to the scheduled March 2005 VA examination without
good cause. See 38 C.F.R. § 3.655. For the reasons outlined
above, the Board finds that VA has satisfied its duty to
notify and to assist pursuant to the VCAA. See 38 U.S.C.A.
§§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b) (2005);
Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24,
2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App.
183 (2002). The application to reopen the claim for service
connection for a lumbar
spine condition must be denied as a matter of law. See
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER
The application to reopen the claim for service connection
for a lumbar spine condition is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs